27 F1d 817

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The citizenship of a J2arty moving from one state into another Is con· trolled by the intention In that regard with which he takes up his residence in the new place.

2.

SAME-REMOVAL FROM STATE-INTENTION.

A party who has moved from one state into another cannot avail himself of thejurisdiction of a federal court upon the claim of being a non-resident, after showing by his acts and declarations. before the litigation commenced, an intention of becoming a citizen in his new place of abode.

Suit for Debt. [,eo. Tarleton, for plaintiff. Houston Bros., for defendant. TURNER, J. "Citizenship," as used in the law under consideration, means residence with intention of remaining permanently at that place. A man may reside in a state for an indefinite period of time without becoming a citizen, but the moment a man takes up his residence in a state different from that where he formerly was domiciled or was a citizen, with intent and purpose of making the new place of residence his future permanent home, that moment he loses his former domicile, and becomes domiciled in the new place; or, in other words, he ceases to be a citizen of the former place of residence, and becomes a citizen of the state of his adoption. The question for me to decide is whether Mr. Winn, the plaintiff, and his assignor, from whom he claims a part of his alleged right of action at the time this suit was instituted, were citizens of l'exas. I put the question this way, because, if not citizens of Texas at that time,' it will be conceded that this suit may be properly prosecuted here. The query raises two questions of fact: First. Where did these parties reside at the time this suit was brought? As a simple question of residence, it may be safely said, in San Antonio. Both these parties were single men, leading a sort of nomadic life, but for the last two or three years the evidence indicated very clearly that San Antonio was headquarters, and the place of residence, for business purposes, or for choice or pleasure, it matters not, for the purpose of this decision. Second question is, was that residence coupled with an intention to permanently remain here? From the nature of the case, no person can judge of the secret intentions dwelling in the minds of other men. The resolutions, intentions, and desires of the mind are made manifest by acts which often reveal the inward intention as clearly &S it would be if the mind of another was so constructed that it could v.27F.no.13-52

818

FEDERAL REPORTER.

be opellod and read as we read from a printed volume. To illustrate: Suppose a man should approach, and deliberately draw a pistol, and discharge it at the person he was approaching, and should kill him by so doing, we would all say that the act was but the execution of a resolution or determination of the mind in the slayer to do great bodily injury to the person slain, and no declaration of innocent intention, however strongly asserted, would convince the observer that the act was othE:lr than willful, and done in order to carry out a previollsly formed design. A man throws into the sea an article of value; we know he intended to part with its possession forever. I have given these strong and abstractly convincing acts to illustrate why it is that we may properly judge of men's intentions by their acts, when not accompanied with declarations; and sometimes we would conclude that the act spoke louder than the declaration, if they were inconsistent with each other. Hence arises the familiar saying that "actions speak louder than words." The question for me to decide, from all the facts and circumstances revealed by the evidence, is whether, after carefully weighing all the evidence, the citizenship of the plaintiff is such as authorized him to bring this suit in this court. The wisdom displayed in permitting a citizen of another state to sue a defendant who resides in this state has never been doubted, and that right should be carefully guarded and protected, whenever the citizenship is of different states. We know, from observation and experience, that association begets friendship, and friendship begets favoritism and bias in favor of those of whom we think kindly; and a stranger, who should. come into a community, and sue a man of good standing, and be compelled to take a jury from the friends and acquaintances of the defendant, would, without any intention on the part. of the jury, certainly have to contend against the bias which unconsciously, but inevitably, springs from friendly association. Hence the justice of the law which has ereated a forum where non-residents can litigate their legal rights; where juries are obtained from widely-separated communities, and therefore not likely to be influenced by any other desire than to administer the law. While this is true, it is none the less true that the right to be tried by one's own peers, and to litigate his rights in the courts of his state, is a right and privilege none the less valuable, and, perhaps, we may safely say more satisfactory to the defeated party than wonld otherwise be the case. When a young man leaves the parental home, and strikes out into the world; goes to another state; engages in business for a considerable length of time,-the natural inference would be that he intended to build himself up a new home, and domicile in the state where he had taken up his residence. So, likewise, if a man of years, overtaken by misfortune,-perhaps reduced from luxury to penury and want,with no family ties to bind him, and the home of former years has passed from him, and from under his control, in the desperation of

wr::-;N V.

819

his situation abandons the state where these misfortunes have cryer· taken him, and remains away for a term of years,-enters into the business of life with a residence in a state,-the inference would naturally arise that he had no desire or intention of longer remaining in the locality of all his misfortunes. Thus much, I think, may safely be said with reference to what would be the natural inference from acts referred to, and these facts are made to appear by the plaintiff's evidence. The evidence of the defendant (which is not disputed) is that plaintiff, at the dinner-table of defendant, declared his intention to support Mr. Cleveland, and the defendant declared his intention to vote for Mr. Blaine; whereupon plaintiff announced his intention to kill his vote, which was understood to mean, and according to the common use of that ex· pression did mean, that the plaintiff intended to vote for the candi· date of his choice. That the conversation was had, there can be no doubt. This declaration, together with the further declaration that he expected to remain upon and run the ranch, certainly justified the defendant in concluding that the plaintiff had become a citizen of the state. Had it been shown that the plaintiff had exercised the privilege of voting, it would have been conclusive evidence of his having adopted this state as his domicile, and he would not be heard to dispute it, as the law regards that act as conclusive evidence of intention. It is in evidence, as I have stated, that he said he would vote. It is in evidence, however, that he did not; and it is in evidence tbat be said he could not vote because not a citizen. The assertion that be would vote (for I hold the declaration in evidence is equivalent to that) is just as persuasive as the declaration that he would and could not, so far as mere declaration is concerned. The question then arises, is there any reason why one should have more influence in determining upon the weight of this evidence than the other? At the time of the declaration that he would vote, good feeling existed, and no reason can well be assigned for any motive to make such a statement other than to give utterance to a formed design; and the same may be said with reference to the declaration about residing upon and running the ranch in Texas; and if, in fact, the design was formed to become a citizen of Texas at any period during his residence here, he became ipso facto a citizen of the state of Texas, (he being a native of this country,) and any subsequent change of purpose would not restore former citizenship .in another state, 80 long as he continued to reside here. On the other hand, it may be fairly inferred from the evidence that the declaration of not voting because not a citizen was made after the possibility of a suit was made evident, and in that case, if it was regarded as any benefit to sue in this coort, then there was a motive in the latter declara· tion, where none can be assigned for making the former declaration of intention to vote against the vote (or to kill the vote) of defend·

820

FEDERAL REPORTER.

ant. This being so, it follows that, in weighing the evidence, the declaration made when no motive for a misstatement is shown, should outweigh the other one, where a reason can be assigned for making a different statement. It is but recently that men who are interested in a cause are permitted to testify in the case. The old rule resulted from a knowledge of human weakness, where one's own interests are involved. While a different rule now prevails, human nature has not changed, and if in weighing evidence, and especially where there is a conflict, we forget what self-interest has to do with human action, we come short of duty. I do not wish to be understood by these remarks as reflecting upon the statement of any witness, because nothing has been said or done that would lead to the conclusion of intentional misstatement, but to show the reasons why one statement may properly claim preference over another, made under different circumstances, by the same person, where influenced and controlled by different motives. The question, then, arises, shall a person so act and make declara. tions that justify the belief in the minds of those who deal with him that a certain fact exists, and when it suits his interest or con. venience assert the contrary? I do not wish to be understood as asserting in this case that the doctrine of estoppel applies, because the defendant has done no act prejudicial to his interest, based upon what plaintiff has said or done. But I do mean to say that a man ought not to so act as to justify the belief that a certain condition of things exists, and then, when it becomes to his interest to declare a different state of facts to exist, and the question presented is rendered extremely doubtful, that he ought not to have the benefit of that doubt. The evidence of Mr. Curiton, plaintiff's assignor, is not that he ever intended to return to Alabama to live. It is true he said he thought he was a citizen of Alabama, if he was a citizen. anywhere. This was but an opinion. and the evidence fails to satisfy me that he had not ceased to be a citizen of Alabama. In conclusion, I may say that acts and declarations of any person, in his own interest, after a controversy has arisen, are received with disfavor. Yet, under the law, It man may be a witness in his own case; but with this privilege comes the duty to those who weigh evidence to discriminate between such evidence as may properly have weight and such as, by the rules of law, should not. In this case, if I have reached a wrong conclusion,-which I do not believe,-the plaintiff must rest satisfied, because his own conduct and declarations, tending to show .citizenship here before any suit was anticipated, have misled me, which acts and declarations I feel in duty bound to hold binding, although those of later date are different. Cause dismissed.

RAJJ.ROAD COMPANIES-POWERS OF DIRECTORS-CONTRACT FOR JOINT MANTwo railroads entered into a contract for the joint management of their lines, including certain railroads leased to them. The contract fixed the proportion of the net earnings to he drawn by each of the contracting parties. In pursuance of the agreement. the directors of the plaintiff company authorized the deduction from the net earnings of interest on the cost of a new depot built by the defendant company for the accommodation of the joint traffic. It was also agreed by the respective boards of directors that the defendant company should purchase a controlling interest in two roads leased to them, and managed under the joint contract, and that during the continuance of the joint contract, the excess of interest upon the purchase money, over the amount of dividends earned upon the stock, should be borne in proportion to their shares of the net earnings. Held that, under the circumstances, the directors of the plaintiff company had acted within their powers, and that the plaintiffs could not claim payment of the sums so expended.

AGEMENT.

2. SAME-DIRECTORS' CONSENT-EVIDENCE.

Where other circumstances prove the directors' consent, it is not necessary, to bind the corporation, that their records should disclose a formal vote of the directors.

In Equity.

B. F. Brooks, for complainant. , A. A. Strout and .J. H. Benton, Jr., for defendant.
COLT, J. This bill in equity relates to certain transactions growing out of a joint traffic contract entered into between the plaintiff and defendant corporations. The original contract was for three years, and was dated January 29, 1857. Bya supplemental contract dated October 1, 1858, the parties agreed to an extension for 20 years. The corporations entered into this contract for the promotion of their mutual interests through a more efficient and economical joint operation and management of their respective roads, and for the better security of their respective investments, as well as for the convenience and interest of the public. By the terms of the contract, the parties agreed to surrender to the joint management the entire control of their roads, shops, depots, and other property, reserving only such property as was afterwards specified in the contract. The parties assumed the joint expenses of operating the roads, and the expenses incident to the working of the Wilton and Stony Brook Railroads connected with the Nashua & Lowell Railroad; also, by supplemental agreement, the parties assumed the contracts existing between the Boston & Lowell and Salem & Lowell and Lowell & Lawrence Railroad Companies. They also assumed the contract existing between the Nashua & Lowell Railroad and the Northern Railroad Company. They also provided that all contracts for the transportation of property or persons heretofore made by either party should be assumed and carried out by the

822

FEDERAL REPORTER.

joint parties, and that all separate contracts necessary for the ordi· nary operation of the roads, then made by either party, should be as· sumfJd by the joint parties, and the expenses paid from the joint funds. The roads were to be managed by one agent, who should be chosen by the combined vote of a majority of the directors of each party. The income and expense accounts of the joint roads were to be made up by estimate at the close of each month, and the net balance divided upon the basis agreed upon, subject to a final adjustment at the closing of accounts. It was further agreed that "on the first day of April and October in each year the said accounts shall be accurately closed and balanced by settlement with each party, and adjusting all previous payments and accounts;" the Boston & Lowell Railroad Company receiving as its portion 69 per cent., and Nashua & Lowell Railroad Company 31 per cent., of the joint net income. It was further agreed that the indenture should be construed a business contract solely, and in no sense a lease of one road to the other, or as a union of the corporate powers or privileges. All controversies arising under the contract, at the request of either party, were to be submitted to arbitrators. After the roads began operation under the joint contract, large additions of mileage were made. The Stoneham Branch was purchased by the Boston & Lowell, and the Peterboro' Railroad was leased by the Nashua & Lowell. The Lexington & Arlington was purchased, and the Middlesex leased, by the Boston & Lowell. In the proper and legitimate development of the roads, it became necessary to form connections with the upper roads, so called, which connected with the the vast country lying to the north and west. The main outlet for this whole line of transportation was Boston. In order to retain the increasing business, as well as accommodate the wants of the public, it became necessary that the joint roads should offer increased facilities for the transportation of passengers and freight. The facilities of the roads were increased in various ways. The directors of the Nashua & Lowell Railroad appointed committees for the purchase of the Mystic River Railroad, for the location of a new depot to be erected in Boston, and for the purchase of wharf, flats, and terminal facilities in Charlestown, and for the providing of better terminal facilities in Boston. 1.'he joint roads united in the purchase of property at East Cambridge, store-houses and wharves on Lowell street, Boston, and the Mystic-wharf property in Charlestown, for the purpose of providing suitable accommodations for increased business. In these purchases the Boston & Lowell Railroad bought 69 per cent. and the Nashua & Lowell Railroad 31 per cent. of the property. The board of directors of the two contracting corporations were accustomed to hold their meetings at the station in Boston. Questions were put to both boards by the president of both boards. All questions in which there was any supposed separate interest or liability

NASHUA &: L. R. CO. V. BOSTON &: L. R. CO.

823

of the two corporations were put by the presiding officer, first to one board, and then to the other. Each board had its own separate clerk and book of records. The joint roads were operated under the contract until its expiration in 1878. The present suit relates to two transactions which took place under the joint contract.-the building of the new passeuJSer station in Boston, commenced in 1870 and completed in 1875; and the purchase of the stock of the Lowell & Lawrence and Salem & Lowell Railroads. The plaintiff corporation now seeks to recover back its share of the joint receipts expended for these purposes, on the ground that these acts were unauthorized and illegal under the joint traffic contract. It is clear from the evidence that, to meet the increased business {)f the joint roads, and to retain their connection with other lines, it was the opinion of those charged with the management of the roads that increased terminal facilities at Boston were necessary. The Nashua & Lowell road, through its directors, participated in negotiations with the Eastern Railroad to this end. Upon the rejection of the plan of a depot to be occupied jointly with the Eastern Railroad, the two eorporations united to provide additional terminal facilities. This subject was early brought to the attention of the stockholders of the Nashua & Lowell Railroad, as appears by the record of the meeting of May 25, 1864, when the directors were empowered to invest the contingent fund of the corporation in lands, warehouses, or other real estate for the better accommodation of the business of the corporation, either upon the line of the road, or at the Boston terminus. In 18,69 the directors of both roads sent Gen. t;tark, the joint manager, to Europe, for the purpose of obtaining the best plans for the erection of a proper station in Boston. Upon the return of Gen. Stark, plans for a new station were presented to the board of directors of the Nashua & Lowell Railroad, and a report in relation to terminal facilities was made, and accepted by the directors. 'l'he plans having been approved by both roads, the question arose as to .the manner in which the Nashua & Lowell Company should bear its ahare of the expense. On July 23, 1872, the directors of the Nashua & Lowell Railroad voted as follows:
.. That the expenditures made and to be made by the Boston & Lowell Railroad Company for land and buildings in Boston for a new station, and the expenditures made and to be made by said corporation for the building and completing the Mystic Hiver Railroad. and for the improvement in Winchester. for a new station and land for railway purposes to the amount of $20,000. are to be treated in the management of the business under the joint contract existing between said corporation and the Nashua & Lowell Railroad Companies. as follows, viz.: The said Boston & Lowell Railroad Company are to be paid the interest upon such expenditures made and to be made at the rate of seven per cent. per annum, at the end of six months, out of the receipts of the joint corporations under said contract, and which are to be charged as a part of the expenses of operating said railway under said tract; and the cashier of said two corporations and treasurer of the Boston &